Initiative on Diversity Spurs Affirmative Action Debate

Summer 2009

As Dean David Schizer noted recently in kicking off the Clifford Chance Thought Leadership Initiative on Diversity, Professor Theodore M. Shaw and attorney Curt Levey are “familiar sparring partners.”

In 2003, Shaw and Levey, the executive director of the Committee for Justice, argued opposing positions before the U.S. Supreme Court in cases challenging race-based admissions practices used by the University of Michigan and the University of Michigan Law School.

This April, the two continued the debate over affirmative action during a spirited discussion held at Jerome Greene Hall. Levey opened by voicing his support for socioeconomic-based admissions policies that do not consider race. Shaw, the former director-counsel and president of the NAACP Legal Defense and Educational Fund, responded by pointing out the limitations of such plans.

“Class-based solutions are helpful, but they are not a complete substitute for race-conscious measures,” he said. “Though African-Americans and Latino-Americans are disproportionately poor, the vast majority of poor people in this country continue to be white, so . . . there’s no guarantee you’re going to reach significant numbers of people of color [using class-based admissions policies], in terms of including them in opportunities.
Or at the very least, you may see a diminishment.”

As part of his presentation, Levey cited studies showing higher dropout rates and a greater likelihood of failing the bar exam for minorities who benefited from affirmative action in law school admissions. He asserted that socioeconomic-based admissions policies will not create a significant drop in the overall number of law students of color who graduate from law school. “What you have,” Levey said, “is a cascade effect, where less [minorities] get into the top schools.”

Shaw countered this point by focusing on the benefits of an elite education. “I have a problem with the cascade effect,” he said. “Placement at these top [law schools] opens doors in ways that don’t always happen at lesser schools.” Shaw went on to conclude that “diversity is important, and I don’t think there’s a good reason to exclude race from all the other factors that constitute diversity.”